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Procedural Reforms: The Qanoon-i-Shahadat

The most widely discussed and important aspect of procedural legal reforms concerns the law of evidence. It has been long contended by advocates of Islamic reform in Pakistan that the 1872 Law'of Evidence, a legacy of British raj, was un-Islamic. Indeed on 2 January 1981, President Zia stated: “In my opinion what is of fundamental importance is that the Law of Evidence should be strictly in accordance with the Qur’an and Sunnah.”

Encouraged by the foregoing, and directed by the President, the reconstituted Council of Islamic Ideology took on the task of examining the 1872 law of Evidence. In 1982, it submitted the fruits of this exercise to the president. As drafted by the council the proposed law of evidence made very significant departures from the 1872 act. Indeed, it made so many departures that the chairman of the council, Tanzil-ur-Rehman, decided that it would be easier to write an entirely new law rather than attempt to amend the old one. Among other things, the resultant draft ordinance contained a detailed chapter on Nisab-i-Shahadat (quan- turn of evidence) which both incorporated the evidentiary requirements of the Hudood Ordinances, and established distinctions between the testimony of men and women. In most instances a woman’s testimony was equated to one-half of a man’s testimony. The draft ordinance also made significant departures from the 1872 act in regard to provisions for oaths, purgation of witnesses, conditions of evidence, and punishments for the retraction of evidence. But the provisions dealing with distinctions between the value of men’s and women’s testimony drew most of the public’s attention. Indeed, the Women’s Action Forum (WAF) and other women’s associations bitterly protested the proposed ordinance by organizing well-attended and much publicized demonstrations in Lahore and Karachi.

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Zia’s administration was caught in a dilemma. It was committed to producing a distinctively Islamic law of evidence which would challenge the vestiges of colonial rule. But at the same time a large, vocal, and well-organized group was contending that the proposed ordinance was unjust and un-Islamic. The expedient adopted by the government was both ingenious and reminiscent of my central hypothesis. Namely, the government adopted a new law of evidence which was almost identical to the old law of evidence but portrayed it as constituting a profound break with the past. Accordingly, on 28 October 1984, Zia announced the passage of the Qanoon-i-Shahadat (law of evidence) declaring it to have replaced an “un-Islamic law with an Islamic law.” But a close examination of the Qanoon-i-Shahadat indicates that it departed from the 1872 act in only one substantive detail. Section 17 of the new law provides that:

in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case warrant.

This clause was substituted for section 134 of the 1872 act which had stated: “No particular number of witnesses shall in any case be required for proof of any fact.” In no other substantive matter was the Qanoon-i-Shahadat of 1984 different from the 1872 Law of Evidence.

In practice section 17 of the 1984 act has not had a significant impact on legal practice or interpretation. As of December 1989, no case had been brought to any superior court in Pakistan which hinged on the interpretation of the substantive amended provision of this ordinance. And, given the nature of procedures relevant to financial transactions in Pakistan none are likely to emerge in the near future. In practice, virtually every financial transaction in Pakistan by custom or rule requires the countersignature of several individuals. Indeed, bank rules specifically sanction the requirement of witnessed signatures, and court procedures relevant to property transfers, loans, contracts, and so forth make similar provisions. Therefore, the much heralded and contested Islamic Qanoon-i-Shahadat is in substance merely a reaffirmation of the 1872 Law of Evidence. Alternatively, the 1872 Law of Evidence has been defined by Nizam-i-Mustafa to be Islamic.